Tenant's Claim for Child's Lead Poisoning from Backyard Soil Dismissed

Former tenant sued landlord, claiming that her child suffered lead poisoning from conditions at the premises and that landlord violated the NYC Childhood Lead Poisoning Prevention Act (Local Law 1). Tenant moved into a ground-floor apartment in 2016 that was entered through a separate building entrance with metal gate and concrete corridor leading to the apartment and the laundry room. Tenant had exclusive access to a backyard where dirt/soil bordered a concrete pavement. Her child played in mud on the concrete and placed soil in his mouth or put his hands on his mouth while playing in the yard. DOH testing found no lead-based paint hazards inside the apartment but did find elevated lead content in the metal gate and three cement walls of the foyer leading to the apartment. Soil sample tests also found lead above EPA hazard level guidelines. Landlord asked the court to dismiss the case without trial.

The court ruled for landlord in part. Lead-based paint hazards, as defined in Local Law 1, didn't apply to the backyard soil. The foyer/vestibule area leading to tenant's apartment wasn't within the "dwelling" as defined by Local Law 1, but landlord may be charged with constructive notice of the lead-paint hazard in the foyer/vestibule area as it's a common area within the meaning of Local Law 1 and landlord retained the authority to enter that area. Tenant also claimed that landlord had common law premises liability. But landlord had no duty to test the backyard for lead and didn't have actual or constructive notice of the presence of lead in the soil. But there were questions of fact as to whether landlord had constructive notice of a lead-based paint condition in the foyer/vestibule area and whether the exposure to lead in this area caused the child's injuries. A trial was needed to determine the facts.

S.M. v. 1170 Dean LLC: 2019 NY Slip Op 33548(U), Index No. 512178/2017 (Sup. Ct. NY; 11/27/19; Martin, J)